RAM PRASAD Vs. (BABU) KRISHNANAND SINGH SHAILA

JUDGEMENT

(1.) THIS is a report made by the Stamp Reporter about Court-fees. There is an appeal in this Court arising out of a suit for partition. In the original Court it was held that two of the plaintiffs appellants each had a share of l/6 in the property and that the rest of the property belonged in equal shares to their father and mother and two half-brothers, i.e., that there were six persons who were each to receive equal shares in the property. It was also found that the property was charged with a sum of Rs. 5,000 to meet the marriage expenses of two of the plaintiffs sisters. From that decree there was an appeal by four of the plaintiffs. There were two main contentions. One was that plaintiffs 3 and 4 also had a share in the property. If that was found to be true, the result would be that there would be 8 persons, each having equal shares and each of the plaintiffs-appellants would have a share of 1/8th, that is, that they would have a share of one-half between them. The other contention was that the charge of Rs. 5,000 should be upon the whole property. The first Court had held that the charge was only on the property of the first two plaintiffs and the father and the mother. It held that there was no charge on the property of the two half-brothers, defendants 2 and 3. The question in issue now before us is whether the plaintiffs-appellants in the lower appellate Court paid the proper Court-fees. What they paid was a sum of Rs. 15, as in suits for partition under Schedule 2, Art. 17(6), Court-fees Act. The office reported that they should also pay a proportionate amount on the part of the sum of Rs. 5,000, which they maintained their property was not liable to meet. It seems to us that the office is in some measure right. The provisions of Schedule 2, Art. 17 (6) apply when it is impossible to value the subject-matter in dispute in the appellate Court. In this case the appellants, on the findings of the first Court, were bound to pay half of Rs. 5,000 on account of the marriage expenses of their sisters. What they said in the memorandum of appeal was that their half-brothers, defendants 2 and 3, should also pay their share of those expenses. According to the contention in appeal, the share of the half-brothers between them was l/4th. Therefore if the contention of the appellants was correct, these brothers had between them to pay l/4 of Rs. 5,000. If this contention alone succeeded, therefore the appellants would escape the burden of this charge to the extent of one-half of l/4 of Rs. 5,000, and the father and the mother would escape the charge to the extent of the other half of 1/4th. It seems to us, therefore that the subject-matter in appeal, so far as this point was raised, was l/8 of Rs. 5,000. We hold therefore that the plaintiffs appellants in the lower appellate Court, besides the sum of Rs. 15 on account of the dispute of their share should also have paid the Court-fees ad valorem on a sum equal to l/8 of Rs. 5,000. Two months are allowed to the plaintiff-appellants in the lower appellate Court, i.e., respondents in this Court, to make good the deficiency in the Court-fees in the Court below. The question of the Court-fees which should be paid in the Court will depend upon the allegations made and whether a pecuniary value can be assigned to them and will be decided in the ordinary way by the Taxing Officer, or the Taxing Judge, as the case may be. THIS is our finding on the office report.